About this Author

Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @CopyfightLawMeme

June 20, 2005

Hey, That's My Handbag (Design)!

Good article in the New York Times on small fashion creators and how the big manufacturers knock off their designs (That Looks Familiar. Didn't I Design It?). How creativity and intellectual property work in the fashion industry is fascinating and this article provides some of the reasons why. I particularly like the conclusion:

Many designers adapt by simply withdrawing from the public eye. After a particularly traumatic knockoff experience, said Amanda Keidan, a jewelry designer in New York, she did just that. She now primarily designs jewelry for private clients.

Not Ms. Dreyfuss, however. She says she has added a larger bag with a circular handle to her collection. In the next few months, she said, she will invest much time marketing her latest creation - and not worry about possible knockoffs.

One case, Illinois Tool Works v. Independent Ink (04-1329) tests whether a company that has a patent on a product, and ties the sales of another unpatented product to it, is to be determined to have market power sufficient to restrain trade under antitrust law.

Basically, the case involves tying a patented ink jet printing device to unpatented ink. The question is whether there is market power sufficient to meet an antitrust claim. The district court said there had been no showing of market power and issued a summary judgement in favor of the patent holder. The Federal Circuit reversed, holding that there is a rebuttable presumption of market power when tying occurs.

The Federal Circuit's decision is based on a number of Supreme Court precedents (including a copyright tying case) that have been heavily criticized by academics. I would assume the Supreme Court is taking this case to reinforce or more likely, overturn, the precedents. However, I don't know enough about the issues here to really understand why the Supreme Court has taken the case.

The GloFish fluorescent ornamental fish are intended solely for visual enjoyment as aquarium fish by end users who have purchased these fish from authorized resellers, and not for commercial reproduction. These fish are the subject of various intellectual property rights owned or controlled by Yorktown Technologies, Inc. (Yorktown), both in the U.S. and internationally. These rights include (1) patent rights, including published patent applications (2) copyrights; and (3) trademark rights, including slogans and service marks.

By accepting these fish, and as part of the consideration therefor, the recipient agrees: (1) not to, breed or propagate these fish, permit or encourage others to breed or propagate these fish, or otherwise intentionally engage in any activity that may result in or lead to the breeding or propagation of these fish by anyone without the express written consent of Yorktown; (2) not to sell or transfer these fish to anyone in the State of California, or to possess or otherwise engage in any activity that results in the possession of these fish in the State of California.

These fish are copyrighted? And why aren't Californians allowed to have any?

June 10, 2005

Over on Copyfight, Alan Wexelblat writes about the possibility that Brazil will suspend patent rights on antiretroviral drugs in order to afford the fight against the AIDS plague (Patent Suspension? Or Let Them Die?). I sympathize with Brazil's position. However, such an action treats only the symptom, not the cause. If Brazil (and other nations facing similar tragedies) do this, it is not cost free. It effectively shifts the costs to patients in nations, primarily the US, that pay full freight. This is hardly equitable for those suffering from AIDS at the bottom of our economy. We need a comprehensive solution.

Perhaps patent suspension can be part of the spur to a comprehensive solution, but it doesn't seem (to my knowledge) that this is being addressed by either side in the debate. For example, if Brazil were to suspend the patents, shouldn't they then spend some of the money saved on research for the next generation of drugs? Such research has to be paid for somehow.

Brazil Threatens to Ignore US IP Rights

Angered by subsidies to U.S. cotton growers, Brazilian lawmakers said Thursday that they were considering suspending the intellectual property rights of American products in their country if the U.S. government did not explain how it intended to change subsidy programs by July 1. ...

"Essentially, the Brazilian position would be, 'We're going to have state-sanctioned piracy,' " said Neil Turkewitz, an executive vice president of the Recording Industry Assn. of America, the music industry's largest trade and lobbying group.

June 08, 2005

Be the first to reach $1 billion. Get rich. Become famous. Help millions of people solve their health problems - show us your Patential Game!!

Patential - a whirlwind tour through the exciting and in-depth business and legal world of the drug development process - is the first game of its kind.

The game dives deep into the realms of the drug approval process. You see your pharmaceutical's development from inception to sales as you learn everything you need to know about securing a patent, the Government drug approval process, and bringing your newly-developed product to market.

Patent Reform Act of 2005 Introduced

Although some of the provisions in the proposed legislation are toned-down from the discussion draft distributed this spring, this version still has something to offend almost every interest. Congressman Smith has called the bill "without question, the most comprehensive change to U.S. patent law since Congress passed the 1952 Patent Act.

May 29, 2005

The present invention relates to improvements in the method of preparing gasified candy. It specifically relates to maintaining the sugar melt at a lower temperature during the gasification step than has been employed commercially heretofore. This lower temperature results in a commercial product having larger gas bubbles than the present product. These larger bubbles give higher "Pop" ratings because they break with greater force and emit a louder sound.

Gasified candy is often sold as a novelty product and in recent years this product has become particularly popular with the younger members of the public. Today's youth seem to prefer a gasified candy which produces a very pronounced pop. Since the product of the present invention exhibits a higher "pop" rating than the commercial product produced heretofore, it is expected that it will prove even more popular with today's young people than the gasified candy currently available.

May 12, 2005

Patently-O: Two Briefs Supporting Cert on Patent Obviousness Case

Patently Obvious has a succinct summary of two briefs supporting a writ of certiorari for a patent case that goes to the question of obviousness (Supreme Court: Patent Professors Support Tighter Obviousness Standard). Many have argued that the standard for obviousness is too low, that it is too easy for patentees to claim their invention is non-obvious. Hopefully this case will get cert. If so, it will be an important one.

Unlike most technologies, software and the Internet have attracted a vast number of small business, non-profit, and individual users  each of whom has adopted and built upon these resources as part of their daily interaction with computers and the online world. From open source programming to online journaling to political campaigning, the average citizen is using new technology online and on her desktop as often as any traditional company.

With this increased visibility, however, comes increased vulnerability. Previously, patent holders had only targeted competing companies. These companies have established legal departments and outside counsel and are thus able to defend against illegitimate patent threats. Now some patent holders have begun to set their sights on the new class of technology userssmall organizations and individuals who cannot afford to retain lawyers. Faced with million-dollar legal demands, they have no choice but to capitulate and pay license fees  fees that often fund more threat letters and lawsuits. And because these patents have become cheaper and easier to obtain, the patentees costs can be spread out quickly amongst the many new defendants. Our patent system has historically relied on the resources of major corporate players to defeat bad patents; now it leaves these new defendants with few if any options to defend themselves.

Illegitimate patents can also threaten free expression. More and more people are using software and Internet technology to express themselves online. Website and blogging tools are increasingly popular. Video and audio streaming technology is ubiquitous. E-mail and Instant Messaging have reached users of all ages. Yet because patents can be anywhere and everywhere in these technologies, the average user has no way of knowing whether his or her tools are subject to legal threats. Patent owners who claim control over these means of community discourse can threaten anyone who uses them, even for personal non-commercial purposes. We lose much if we allow overreaching patent claims to reduce the tremendous benefits that software and technology bring to freedom of expression.

Hmmm...I wonder what would happen if you put a law similar to the patent law (only more flawed) into the hands of just about anyone who wants to abuse it (copyrights being even easier to obtain than patents)? Imagine a small team of lawyerscompany that put together a portfolio of copyrighted works that are shared (at least somewhat) via various networks and then start going after individuals and companies who didn't infringe the works, but "induced" infringement by numerous, unknown others. Even if the case is winnable, defending it will be very costly. Small organizations and individuals who cannot afford to retain lawyers will have no choice but to capitulate and pay license fees  fees that often fund more threat letters and lawsuits.

Yes, the INDUCE Act (née IICA) would have yet another unintended consequence.

The day before the Secretary of State warned the world about the threat of terrorist ricin attack, I was undercover at the nation's US Patent Office. There, a simple word search on its public computer yielded meticulously detailed instructions on how to make the purest, deadliest form of the poison.

Yeah, like terrorists are going to go to the US Patent Office to do research on biological weapons.

The concern is so great that Ricin will get into the wrong hands the FBI has issued an alert to all law enforcement agencies. Yet just a few miles from the bureau headquarters in the nation's capitol, the US Patent Office allows anyone to get a copy of the Ricin recipe for just 25 cents a page.

Ooookaaay. This is a threat vector we should be worried about because? Anyway, all this sensationalism leads to bogus calls for "increased security."

New York's senior senator says in the interest of national security, the US Army patent needs to be removed from the public domain immediately.

Senator Charles Schumer, New York (D): "For the FBI to be putting out an alert against Ricin and then for the Commerce Department to have this on their computer so anybody can walk in and figure out how to make it, makes the average citizen scratch their head and think, 'What the heck is going on down there in Washington?'

Rest assured Senator, the lack of the patent in the US database means that terrorists will never be able to figure out how to make ricin because even web-savvy bloggers can't get the information very easily .... ooops. Never mind.

At one prestigious university, a sophomore imported 30 biology books from England this fall and sold them outside his classroom for less than the campus-bookstore price, netting a $1,200 profit. Next semester, if all goes well, he plans to expand the operation.

We've already seen a great deal of this sort of arbitrage in the drug market, where US residents are buying drugs from Canada, for example, at prices much lower than are available in the United States. The drug importation arbitrage is based on patent law instead of copyright, but the principle is the same.

The policy arguments on behalf of the drug companies and textbooks publishers are similar, except, at least in the case of drugs, there is a quasi-plausible argument that Canadian drugs aren't quite as safe. What can you say about reimported textbooks? Essentially, the argument is that intellectual property goods cost a great deal to produce and price discrimination is necessary in order to allow the holder of the intellectual property rights to gain sufficient return.

This argument carries some weight, but what are we to do about it? Why should struggling US college students (or drug-requiring patients) be the ones to subsidize the production of such goods for students (or patients) in other countries?

Interestingly, it has been the entertainment industry that has been the most successful at foiling the gray market, through "region control" systems that are protected by the DMCA.